Dinh v Minister for Immigration
[2019] FCCA 1528
•6 June 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DINH v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1528 |
| Catchwords: MIGRATION – Migration Act 1958 (Cth) – application for a Prospective Marriage visa – application for review by sponsor of decision of Administrative Appeals Tribunal affirming decision of a Delegate of the Minister for Immigration not to grant a Prospective Marriage visa because spousal relationship between applicant and sponsoring partner found not to be genuine – information provided to Administrative Appeals Tribunal exceeding what was able to be given to the Delegate and found to be memorised for immigration purposes – applicant sponsor claims that Administrative Appeals Tribunal failed to disclose to the applicant sponsor and the visa applicant that communications between them would be an issue on review before it – no such obligation on Administrative Appeals Tribunal to disclose and in any event such information must have been known to applicant sponsor and visa applicant – no jurisdictional error otherwise established – application for judicial review dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5F, 65, 360, 424A, 425 |
| Cases cited: BAZ15 v Minister for Immigration [2018] FCA 230 BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 SZOBC v Minister for Immigration & Citizenship (2010) 116 ALD 147 |
| Applicant: | THI THIN DINH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | SYG 1418 of 2016 |
| Judgment of: | Judge Dowdy |
| Hearing date: | 12 June 2018 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr L. Karp of Counsel |
| Solicitors for the Applicant: | Vinh Duong & Associates |
| Counsel for the First Respondent: | Ms N. Laing of Counsel |
| Solicitors for the First Respondent: | Mills Oakley |
THE ORDERS OF THE COURT ARE AS FOLLOWS:
The Application filed in this Court on 3 June 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1418 of 2016
| THI THIN DINH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant in this Court is a female citizen of Australia of Vietnamese ethnicity aged 50 years, having been born on 6 May 1969 (sponsor). She had sponsored the application lodged on 1 August 2014 of Mr Tuan Pham (visa applicant) for a Prospective Marriage (Temporary) (Class TO) (Subclass 300) visa (Prospective Marriage visa) on the basis that they intended to marry. The visa applicant’s adult son and teenage daughter from his first marriage (which ended in divorce on 23 October 2012) were secondary applicants for the Prospective Marriage visa as members of his family unit.
By Application filed in this Court on 3 June 2016 the sponsor seeks to quash and have re-determined the decision of the Second Respondent, the Administrative Appeals Tribunal (Tribunal), dated 2 May 2016 affirming the decision of the Delegate (Delegate) of the First Respondent, the Minister for Immigration and Border Protection (Minister), dated 8 April 2015 refusing to grant a Prospective Marriage visa to the visa applicant and his children under s.65 of the Migration Act 1958 (Cth) (the Act).
Background
The sponsor had become an Australian citizen on 13 September 1994.
The Prospective Marriage visa application was lodged on behalf of the visa applicant and sponsor by their Australian solicitor and registered migration agent in Vietnam. The visa applicant was a citizen of Vietnam and lived in Hai Phong City in Vietnam. Both the visa applicant and the sponsor claimed that they intended to marry on 6 June 2015, having first met in Vietnam on 15 September 2013.
The background, commencement and progress of the relationship between the sponsor and the visa applicant were set out in the sponsor’s Statutory Declaration declared on 24 July 2014 and the visa applicant’s Statement dated 6 August 2014. In her Statutory Declaration the sponsor stated in short as follows:
a)she lived in Yagoona, New South Wales with her daughter, her daughter’s boyfriend and two overseas students;
b)she was born in Quang Ninh, Vietnam;
c)she arrived in Australia on 29 August 1991 from a refugee Camp in Hong Kong;
d)she had worked as an operational manager at a restaurant in Pitt St, Sydney since July 2010;
e)she was married to her first husband on 21 December 1989, that marriage ending in divorce on 6 May 1996;
f)she met the visa applicant through a mutual friend (who used to be a brother-in-law of the visa applicant), first contacting him by telephone in February 2013. They talked on the telephone a number of times;
g)on 6 May 2013 the visa applicant expressed his love for the sponsor over the telephone, and on 15 September 2013 while on a trip overseas the sponsor met the visa applicant in Vietnam, together with her relatives. They travelled within Vietnam, and two days later on 17 September 2013 the visa applicant proposed to the sponsor, which proposal she considered and accepted;
h)on 14 May 2014 she and the visa applicant were engaged at a ceremony in Vietnam; and
i)she and the visa applicant were planning on organising their wedding to take place in Cabramatta, Australia on 6 June 2015.
The evidence given by the visa applicant in his Statement was supportive of the evidence given by the sponsor in her Statutory Declaration.
Statutory Provisions Relevant to the Grant of a Prospective Marriage Visa
Relevantly at the time of application and time of decision the visa applicant had to satisfy the following subclauses of Subclass 300 of Sch.2 to the Migration Regulations 1994 (Cth) (the Regulations):
300.21Criteria to be satisfied at time of application
300.215
The applicant establishes:
(a) that the parties genuinely intend to marry; and
(b) that the marriage is intended by the parties to take place within the visa period.
300.216
The Minister is satisfied that the parties genuinely intend to live together as spouses.
(emphasis added)
300.22Criteria to be satisfied at time of decision
300.221
The applicant continues to satisfy the criteria in clause 300.211 and clauses 300.214 to 300.216.
Section 5F of the Act defining “spouse” as follows was obviously informative and relevant to cl.300.216:
5FSpouse
(1) For the purposes of this Act, a person is the spouse of another person if, under subsection (2), the 2 persons are in a married relationship.
(2)For the purposes of subsection (1), persons are in a married relationship if:
(a) they are married to each other under a marriage that is valid for the purposes of this Act; and
(b) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or
(ii)do not live separately and apart on a permanent basis.
(3) The regulations may make provision in relation to the determination of whether one or more of the conditions in paragraphs (2)(a), (b), (c) and (d) exist. The regulations may make different provision in relation to the determination for different purposes whether one or more of those conditions exist.
Decision of Delegate
The Delegate (situate at the Australian Consulate-General in Ho Chi Minh City) in his Decision Record dated 8 April 2015 found that he was not satisfied that the visa applicant met cl.300.216, in that he was not satisfied that the visa applicant and the sponsor genuinely intended to live together as spouses, and he refused the application to grant a Prospective Marriage visa to the visa applicant.
I note that because the Ground relied on in this Court by the sponsor is substantially based on SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs (2006) 228 CLR 152 (SZBEL) that it is necessary in this decision to have greater regard to the terms of the Decision Record of the Delegate than would be usual in a case of this nature.
In his Decision Record the Delegate had regard to the definition of “spouse” comprised in s.5F of the Act and reg.1.15A of the Regulations made under s.5F(3). The Delegate summarised the claims of the visa applicant and the sponsor to be as follows:
The applicant and his ex-wife finalised their divorce on 23 October 2012.
The brother in law of the applicant's ex-wife introduced the sponsor to the applicant in February 2013. The parties maintained contact and developed a relationship.
The sponsor travelled to Vietnam on 3 September 2013. The parties met in person for the first time on 15 September 2013. The applicant proposed to the sponsor and she accepted. The sponsor returned to Australia on 3 October 2013.
The sponsor travelled to Vietnam again on 10 May 2014. The parties held an engagement on 14 May 2014. The sponsor returned to Australia on 24 May 2014.
Then in relation to the nature of the commitment of the visa applicant to the sponsor the Delegate recorded in particular that at his interview with the visa applicant in Ho Chi Minh City, apparently held on 2 February 2015, that:
•The applicant could not recall the date when he started to contact the sponsor after they were introduced by his former wife’s brother in law;
•The applicant could not recall the date when he met the sponsor for the first time; and
•The applicant could not recall the date when he proposed marriage to the sponsor after meeting and spending time with her in September 2013.
It is reasonable that [the] applicant may not remember some aspects of his relationship with the sponsor. However, I find it implausible that the applicant did not recall some of the most significant milestones of the inception and development of the claimed relationship. I find that this indicates the claimed relationship has not been presented in a truthful or accurate manner and provides me grounds to question [the] genuineness of the claimed relationship and the applicant's intention to marry and live together with the sponsor as her spouse. Consequently, I am not satisfied that the parties' decision to marry after spending such a limited time together in a relationship reflects the level of consideration that is commensurate with the seriousness attached to a decision between two people making a genuine and lifelong commitment to each other.
The applicant and the sponsor have provided evidence of contact including exchanged emails and telephone bills for the period [between] November 2013 and January 20 I 5. At interview, the applicant was requested to provide evidence of contact prior to their first meeting in September 2013, in particular the evidence which shows that they had developed a telephone relationship prior to first meeting. The applicant stated that there was no such evidence. Given the insufficient evidence and my concern about the nature of the claimed relationship, I cannot be satisfied that the parties had developed a telephone relationship prior to their first meeting in September 2013.
Moreover, given the level of claimed contact, it could reasonably be expected that the applicant would be able to demonstrate quite substantial knowledge of the sponsor and various aspects of [her] life. However, at interview, the applicant demonstrated certain gaps in his knowledge of the sponsor. I note in particular:
•The applicant stated that the sponsor fled Vietnam and migrated to Australia in 1991. However, he did not know whom the sponsor fled the country with. He also did not know what the sponsor did for a living when she first got to Australia;
•The applicant stated that the sponsor is currently a manager at a restaurant. However, he did not know the name of the restaurant. He also did not know who the restaurant's owner is, what cuisine is served at the restaurant or how the sponsor got this job. He did not know many staff work for the sponsor or what their names are;
•The applicant did not know what the sponsor had been doing before she started working at the restaurant in 2010;
•The applicant did not know when the sponsor started living at her current address and when she bought this house;
•The applicant did not know when the sponsor's father passed away, when his death anniversary is or where he was buried; and
•The applicant did not know how old the sponsor's mother is or when her birthday is.
On the basis of the evidence before me, I cannot be satisfied that the parties communicate with, and draw a degree of emotional support from one another, as could be expected by people who genuinely intend to live together as spouses.
Accordingly, as already stated, the Delegate refused to grant a Prospective Marriage visa to the visa applicant.
Decision of Tribunal
The sponsor, through a new solicitor and registered migration agent, lodged an application for merits review of the decision of the Delegate with the Tribunal on 27 April 2015 and gave a copy of the Decision Record of the Delegate to the Tribunal at the same time.
The sponsor, the visa applicant by telephone and their solicitor and registered migration agent, Mr Duong, attended a hearing before the Tribunal on 2 May 2016 to give evidence and present arguments.
In the result the Tribunal was not satisfied that the sponsor and the visa applicant had a genuine intention to live together as spouses and it affirmed the decision of the Delegate not to grant a Prospective Marriage visa to the visa applicant.
The Tribunal’s consideration and findings in this respect were set out at [7] – [18] of its Decision Record. The Tribunal focused on whether the sponsor and the visa applicant had, at the time of application, a genuine intention to live together as spouses pursuant to cl.300.216.
At [10] of its Decision Record the Tribunal accepted there had been some exchange of finances between the sponsor and the visa applicant, at [11] – [12] it accepted that they socialised together and represented themselves as being in a relationship and that their relationship was known to others and supported by friends and family and at [13] accepted that they had discussed their future together and had made meaningful plans which could suggest that they had a genuine intention to marry and viewed the relationship as a long term one.
However, in the result the Tribunal found that it was not satisfied that the sponsor and the visa applicant genuinely intended to live together as spouses, either at the time of the Prospective Marriage visa application or at the time of decision. In particular, the Tribunal made the following findings:
a)it had concerns about the development of the relationship, particularly the speed at which it developed: see [8] of the Decision Record;
b)in the two years that had elapsed since they had been engaged they had not yet registered the proposed marriage in Vietnam: see [9] of the Decision Record;
c)the sponsor and the visa applicant did not have any joint liabilities or financial responsibilities towards each other: see [10] of the Decision Record;
d)they had spent less than three months in each other’s company, and even though they socialised together it found that it considered that time very limited: see [11] of the Decision Record;
e)the oral evidence given by the visa applicant before the Delegate was limited, and it was not satisfied that nervousness was a good reason for his apparent lack of knowledge: see [14] of the Decision Record;
f)further, the sponsor appeared to have little knowledge about the studies of the visa applicant’s son and did not know that his divorce took two years to finalise, and the visa applicant could not recall the sponsor’s employment arrangements over the preceding week, while in the circumstances the Tribunal would expect them to have a good knowledge about such matters: see [15] of the Decision Record; and
g)it formed the view that some of the answers given by the visa applicant to the Tribunal “were memorised”, and that information had been exchanged between the sponsor and the visa applicant after receipt of the decision of the Delegate due to their “desire to meet immigration the requirements and not because of their commitment to this relationship”: see [16] of the Decision Record.
As indicated at [19(g)] above, an issue that concerned the Tribunal was its view that at the Tribunal hearing the visa applicant appeared to have artificially increased his knowledge of the sponsor’s circumstances since the decision of the Delegate, who had found that there were significant gaps in his knowledge of the sponsor’s circumstances. Because it is relevant to the Ground relied upon by Mr Karp of Counsel, who appeared for the sponsor at the hearing in this Court, it is appropriate to set out [14] – [16] of the Decision Record of the Tribunal:
[14] The Tribunal notes that according to the primary decision record, at the time of the primary interview the visa applicant's knowledge of the [sponsor’s] circumstances appeared to be quite limited. The review applicant explained to the Tribunal that the visa applicant was nervous and was told to keep his answers short. The Tribunal does not accept that the visa applicant was not given adequate opportunity to present his evidence and that he was told to limit his evidence to the 'yes or no' answers as the review applicant suggests and although the Tribunal is prepared to accept that the visa applicant may have been nervous during the interview, the Tribunal is not satisfied this provides a good reason for his apparent lack of knowledge.
[15] Further, in their oral evidence to the Tribunal the couple gave detailed and consistent information about some aspects of the relationship but lacked knowledge about other aspects of each other's lives that the Tribunal would consider to be significant. For example, the review applicant appeared to have little knowledge about the study of the visa applicant's son, claiming they do not discuss it. In the Tribunal’s view, care and support of children (including adult but dependent children) is a significant aspect of a committed relationship and the parties failure to discuss it is of concern to the Tribunal. Similarly, the visa applicant could not recall the review applicant's employment arrangements over the past week while the review applicant was unaware that the visa applicant's divorce took two years to finalise. The Tribunal is mindful of the parties' claim that they communicate frequently and rely on each other for companionship and emotional support. In such circumstances, the Tribunal would expect the parties to have a good knowledge about such matters which are of reasonable importance.
[16] The Tribunal has also formed the view that some of the answers given by the visa applicant to the Tribunal were memorised. It appears that, with his inability to answer questions about the review applicant being one of the reasons for the primary refusal of his application, the visa applicant and the review applicant went about exchanging and memorising information that they thought they may be questioned about. The Tribunal is concerned that such exchange of information occurred due to the parties' desire to meet the immigration requirements and not because of their commitment to this relationship.
(emphasis added)
In the last two sentences of [17] of the Tribunal’s Decision Record it stated as follows:
[17] …The Tribunal is not satisfied they have established adequate communication with each other and has formed the view that their exchange of information was governed by visa requirements. The Tribunal acknowledges that some of the evidence supports the finding that the couple genuinely intend to marry but other evidence does not satisfy the Tribunal that such intention exists.
As the visa applicant did not satisfy the criteria for the grant of a Prospective Marriage visa his children, as dependent family member applicants, did not satisfy cl.300.321 as was required and the Tribunal affirmed the decision of the Delegate.
Ground of Attack on Tribunal Decision
The sponsor relied on the following Ground:
1. The Tribunal committed jurisdictional error by failing to comply with s. 360 of the Migration Act.
Particulars
(a) Failure to disclose to the applicant that an issue in the review was whether the communications between the applicant before this Court and the visa applicant were conducted for the migration purposes.
In support of this Ground Mr Karp submitted in substance that the Tribunal had failed in its obligation under s.360 to disclose to the sponsor its view that some of the visa applicant’s answers at the Tribunal hearing appeared to be memorized after he and the sponsor had swapped and exchanged information that they thought they might be questioned about and which might lead the Tribunal to make adverse findings about the visa applicant’s credibility and was motivated to obtain a favourable immigration result. Mr Karp submitted that the statement, in question form, of the Tribunal member directed at the sponsor at the Tribunal hearing (at Q259 of the transcript of the Tribunal hearing) was inadequate for the purposes of s.360 of the Act in grounding or justifying the last sentence of [16] of the Decision Record of the Tribunal (see [20] above), because what was said there by the Tribunal member could have been understood as referring to preparation and memorisation supporting and seeking to show and persuade the Tribunal that there was a commitment to a spousal relationship, rather than memorisation being part of an attempt to achieve a favourable immigration outcome. Mr Karp went on the submit that “… it was not fair and not in accordance with 360 that [the Tribunal] failed to disclose to the applicant why this information was relevant, and the reason it was relevant was because it might draw an adverse finding about credibility from it.”.
Question 259 was as follows:
[Q259]So as I mentioned several times before, it seems to me that when your fiancé was interviewed by the Immigration officer he didn't know all the information, he seems to know a lot more information now which I wouldn't expect him to know but then he had difficulty telling me other things which I would expect him to know, so things about your daily circumstances he wasn't very familiar with but he gave me your full address in English even though it would be completely meaningless to him. So he gave me different answers about the size of your mortgage, the overall mortgage or the repayments that you make every week. He gave me different answers about when you started your current job, you said 2011, he seems to think - he told me it was 2010. He couldn't remember supposedly when you worked or when you had days off in the past week. I asked why it took him two years to divorce, you told me it was because by 2012 he decided to look for another partner and he said that he actually applied in 2010 for divorce and the process took two years. He didn't seem to be aware of it at all. And you don't seem to know very much about your - his son's study. And..... to me that a lot of information that you did know was simply memorised from the time of the previous interview until today because you thought these were the questions that he would be asked. Does she want to say anything about any of those things?
A(INT) Yes, I said there was a gap of time between the interview with the Department of Immigration and now. My husband was stressed at the time of the interview and since I have mentioned to him that there's - actually he's not the type of eloquent person and he didn't care much - he doesn't care much about details so I have to tell him again the details and the ... and also teach him how to pronounce the English words. Regarding my work, actually I mentioned to him correctly. The time I started this current job was myself just made the mistake in saying what the … actually started in 2010.
With respect to the transcript of the Tribunal hearing, for the sake of completeness I note that at the commencement of the Tribunal hearing at [TP2: Q5] the Tribunal member advised that he must be satisfied that there was a genuine intention to live together as spouses and at [TP24: Q180-181] the Tribunal member asked the visa applicant as follows:
[Q180]When you were interviewed by the Immigration Officer [i.e. the Delegate] you didn't seem to know very much about your fiancés circumstances at all. I'm asking you some questions now and you are giving me a lot more information that I even ask her, information I don't expect you to know like your fiancé’s full address. Why would that be?
A(INT) Because at the time of the interview I got stress and I could not at once remember all the details.
[Q181] Well, they asked you about your fiancé’s living arrangements and you gave me her full address in English which I would not necessarily expect you to know. I mean, it sounds to me that you have memorised this information from the time of your previous interview until today?
A(INT) Not that I have ..... the interview. My wife has clarified again these details to me.
Consideration
Section 360 of the Act is the analogue of s.425. The procedural fairness requirements of s.425(1) were considered by the High Court in SZBEL.
The principles established by SZBEL and their application were stated by Griffiths J in BAZ15 v Minister for Immigration [2018] FCA 230 at [20] – [22] as follows:
[20] As at the date of the Tribunal’s decision, s 425(1) of the Act provided:
425Tribunal must invite applicant to appear
(1)The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
[21]This provision was considered in some depth by the High Court in SZBEL v Minister for Immigration & Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152. The important principles established in that decision may be summarised as follows:
(a)a review applicant is entitled to assume, absent any statement by the review tribunal to the contrary, that the issues on the review are those which the delegate considered to be dispositive (at [35]);
(b)if the issues which arise on the review are considered by the review tribunal to be different from those before the delegate, the review tribunal is required to take steps to draw the relevant issues to the review applicant’s attention (at [35]); and
(c)it is a matter for the review applicant to establish the claims that are made and it is not useful to speak in terms of “onus of proof”. The Act assumes that issues can be identified as arising in relation to a decision under review and, while those issues may extend to all aspects of a protection visa applicant’s claim, they need not. Significance must attach to the terms of s 425(1) and its reference to the applicant being invited to appear before the Tribunal “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (at [40]).
[22]As Ms Laing (who appeared for Minister) submitted, other case law establishes the following relevant principles:
(a) s 425 does not impose an obligation on the review tribunal “to ensure that an applicant makes the best of the invitation to attend the hearing” (SZTXE v Minister for Immigration & Border Protection [2015] FCA 493; 232 FCR 433 at [18] per Flick J);
(b)the provision does not oblige the review tribunal to “actively assist the applicant in putting his or her case” (Minister for Immigration& Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126 at [36] per Gray, Cooper and Selway JJ);
(c)the review tribunal is not obliged by s 425 to carry out an inquiry to identify what the review applicant’s case might be (SZNTO v Minister for Immigration & Citizenship [2010] FCA 183; 114 ALD 129 at [34] per Yates J). It is the review applicant’s responsibility to present whatever evidence or argument in support of his or her case, and the review tribunal must then determine whether that case has been made out (Abebe v Commonwealth [1999] HCA 14; 197 CLR 510 at [187] per Gummow and Hayne JJ); and
(d)the review tribunal is not obliged “to prompt and stimulate an elaboration which the applicant chooses not to embark on” (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S 154/2002 [2003] HCA 60; 77 ALJR 1909 at [58] per Gummow and Heydon JJ).
In my view, this Ground is not made out and fails to establish that the decision of the Tribunal is affected by jurisdictional error.
The Delegate was clearly unimpressed with the paucity of the visa applicant’s knowledge of the sponsor, and that lack of knowledge was central to his finding that the visa applicant and the sponsor did not genuinely intend to live together as spouses. At the time when the application for review was made to the Tribunal the sponsor and the visa applicant were being advised by a registered migration agent who was also a solicitor and an accredited immigration specialist, namely Mr Duong, who remains the solicitor for the sponsor in this proceeding. It must have been crystal clear to both the visa applicant and the sponsor that, once again, a central issue before the Tribunal would be whether they genuinely intended to live together as spouses, as required by cl.300.216. That was made more than sufficiently clear by the Decision Record of the Delegate, a copy of which was given by them to the Tribunal and which must have been well known to the visa applicant, the sponsor and Mr Duong. In SZBEL at 162 [32] – [33] the High Court referred with approval to the decision of the Full Court of the Federal Court in Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 in the following terms in relation to procedural fairness:
[32]In Alphaone the Full Court rightly said [at 590-591]:
“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”
(Emphasis added.)
[33]The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.
The first thing to be said is that whether or not there had been memorisation between the Applicant and the sponsor was not an “issue” in the sense discussed by the High Court in SZBEL. Rather, the question of the swapping of information and memorisation arose out of the Tribunal’s consideration of the consistency, or rather inconsistency, between the evidence of the visa applicant at the interview with the Delegate and his evidence as given at the Tribunal hearing and as such no prior notice was required to be given by the Tribunal of its thought processes in this regard. As Nicholas J said in SZOBC v Minister for Immigration & Citizenship (2010) 116 ALD 147 (SZOBC) at 155 [30]:
[30]I agree with the federal magistrate that the appellant’s inconsistent evidence did not itself constitute a separate “issue” of which the appellant was required to be notified for the purposes of s 425 of the Act. That section does not require the tribunal to identify the significance of the questions put to the appellant, or the ultimate issue or matter to which the tribunal’s questions were directed. Any such requirement would constitute an attempt to import the requirements of s 424A(1) into s 425: see Minister for Immigration and Citizenship v Applicant A125 of 2003 (2007) 163 FCR 285; 243 ALR 691; 98 ALD 246; [2007] FCAFC 162 at [88]. In effect, what the appellant seeks is a running commentary from the tribunal regarding the evidence being given. The tribunal is under no such obligation: SZBEL at [48].
Second, in my view the subject matter and findings expressed from [15] – [17] of the Decision Record could not reasonably be said to have been not obviously open on the known material: see SZBEL at 161 – 162 [29] – [31]. Accordingly, there was no obligation on the Tribunal to give any particular notice or warning in relation to the issues of memorisation and swapping and exchange of information between the visa applicant and the sponsor, although for an abundance of fairness or caution the Tribunal appears to have done just that at Q180, Q181 and Q259. Further, in my view the answers by the visa applicant at Q180 and Q181 and the sponsor at Q259 indicate that they each in fact understood that the Tribunal member was questioning their credibility rather than referring to memorisation as indicating their commitment to a spousal relationship: see Mr Karp’s submission in this regard at [24] above.
Third, as noted in the above passage from the judgment of Nicholas J in SZOBC the Tribunal is not required to give an applicant a running commentary on its thought processes, which in my view is what the Ground relied upon by the sponsor appears to assert was required in this case. As was said in SZBEL at 165 – 166 [47] – [48] the High Court comprised of Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ said:
[47]… It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor…
[48]Secondly, as Lord Diplock said in F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry:
“the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
More recently, Wigney J in BTU18 v Minister for Home Affairs [2019] FCA 540 at [53] said as follows:
[53]Procedural fairness generally requires an administrative decision-maker to put a person who might be affected by the decision on notice of “any adverse conclusion which has been arrived at which would not obviously be open on the known material”; but that does not extend to the disclosure of the decision-maker’s “mental processes or provisional views”: Cmr for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592; SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [29]. Nor is it necessary to disclose the decision-maker’s opinions, doubts or subjective appraisals: Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at [413] (Kiefel J); Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] (French CJ and Kiefel J).
Finally, in this case the evidence before the Tribunal was different and amplified from the evidence given to the Delegate, and in such circumstances s.360 of the Act does not require any type of warning such as considered in SZBEL. In SZHBX v Minister for Immigration & Citizenship [2007] FCA 1169 at [14] Edmonds J said as follows:
[14] Section 425, as construed in SZBEL, requires the Tribunal to disclose to an applicant additional issues which were not live issues in the delegate’s decision or otherwise made known to the applicant as being in issue. If the Tribunal proposes to make an adverse finding on a matter where the delegate accepted or found no deficiency in the applicant’s claims and the applicant has not otherwise been notified that the matter is in issue, the Tribunal should disclose to the applicant that it has a concern about the matter ( (2006) 81 ALJR 515 at [36]). It is an entirely different matter to say that the Tribunal is bound to treat the applicant’s case before the Tribunal as identical to the case the applicant presented to the delegate. Following the delegate’s decision an applicant may present additional evidence, and/or elaborate upon or change the Convention ground claimed. The Tribunal has a duty to consider the claim as it is presented to it on the basis of all the available evidence. The Tribunal does not have a duty to inform an applicant that because the evidence on which he or she now relies is different from the evidence before the delegate, the Tribunal may make different factual findings. Nor does the Tribunal have a duty under s 425 to inform an applicant that because the claims are now framed on the basis of a different Convention ground it will be required to consider whether the evidence supports the new claim.
(emphasis added)
More recently Perry J in BYF15 v Minister for Immigration & Border Protection [2016] FCA 774 said at [46] as follows:
[46]The second issue is whether the first applicant’s claim that his daughter had a hole in her heart became a dispositive issue requiring a second invitation to a hearing, given that the issue was raised after the hearing. As the Minister submits, s 425 requires the Tribunal to disclose to an applicant additional issues on the review which were not live before the delegate: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 163 [35]. However, the Tribunal does not have a duty to inform an applicant that it may make different findings because the evidence on which the applicant now relies is different from that before the delegate or because new claims are advanced before the Tribunal: SZHBX v Minister for Immigration Citizenship [2007] FCA 1169 (SZHBX) at [14] (Edmonds J) (application for special leave to appeal to the High Court refused: [2008] HCASL 131). Nor does the Tribunal have a duty under s 425 to inform an applicant that because different claims are made, it will be required to consider whether the evidence supports the new claims: SZHBX at [14]. As such I accept the Minister’s submission that there is no arguable case of a failure by the Tribunal to comply with s 425 of the Act.
Accordingly, in my view no breach of s.360 of the Act has been established by the sponsor in relation to this matter.
Conclusion
The sponsor has failed to establish that the decision of the Tribunal is affected by jurisdictional error and the Application filed in this Court is to be dismissed.
I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of Judge Dowdy
Date: 6 June 2019
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